Where a rule has long been followed by the courts, and is based upon sound reason, and accords with justice, it should not be disturbed. 3. APPEARANCE 24(13) GENERAL OR SPECIAL APPEARANCE-EFFECT OF ANSWER ArtER SPECIAL APPEARANCE. [1] It was not customary for the timber-12. COURTS 89 SETTLED LAW. men to use the track on the shift that plaintiff was employed on; therefore they could not be working in common and be held as fellow servants. True, they could be working for one master, but this is not the criterion of a fellow servant. In Barter v. Stewart Mining Co., 24 Idaho, 540, 135 Pac. 68, the facts were almost identical with the case at bar, except that several collisions had previously occurred. The court refused to direct a verdict in defendant's favor on all their contentions. [2] The contention of assumed risk is without merit. Plaintiff having no control over the timber truck, he cannot be held to have assumed the risk of which he has no knowledge and which is under the control of the master and a different, independent, work. [3, 4] This question then confronts us: Was it negligence for the defendant to have the timber truck on the track at the time it did, without warning to the plaintiff of its presence? "A master is bound to give a servant, working in a place which may become dangerous, by reason of perils arising from the doing of other work pertaining to the master's business, different from that in which the servant is engaged, such warning of the additional danger as will enable him, in the exercise of reasonable care, to avoid them, and such duty cannot be delegated so as to render the master free from liability for negligence in its performance.' 4 Thompson on Negligence, § 4069, p. 294. Where defendant made a special appearance by motion to quash service, which was denied, and defendant subsequently answered to the merits, without asking affirmative relief, and, attempting to preserve the question of service, contested plaintiff's demand, the objection to jurisdiction was not waived. Holcomb, J., dissenting. Chadwick, J., concurring specially. En Banc. Appeal from Superior Court, King County; John S. Jury, Judge. On rehearing. Former opinion (171 Pac. 1040) reversed in part, and judgment affirmed. George H. Rummens, Wilmon Tucker, Heber McHugh, and John T. Casey, all of Seattle, for appellant. Roberts, Wilson & Skeel and Bogle, Graves, Merritt & Bogle, all of Seattle, for respondents. TOLMAN, J. This case was heretofore decided by departmental decision, which will be found in 171 Pac. 1040, and to which reference is made for a statement of the facts. Upon a rehearing en banc, a majority of the court is of the opinion that the former decision cannot stand, for the reasons which will hereinafter appear. Plaintiff could not anticipate, without warning of some kind, that the timber truck Four different attempts were made to serve was on the track around the curve ahead of the summons on the Kennecott Mines Comhim. He had been hauling the ore for pany by the delivery thereof to four different months and had passed the place many times persons thought to be its agents. By its moa day without previously encountering timber tions to quash the respondent challenged the trucks, except once when the shift boss prom-sufficiency of the service upon each of such ised him that it should not occur again. If persons, which motions to quash were denied plaintiff received no warning or notice of the additional danger of the timber truck being on the track, so that he could have guarded against the injury, he could not be held accountable for contributory negligence or assumption of risk. All these were questions of fact for the jury to be met by competent evidence. The cause is reversed and remanded for 1152. And as the authorities are there renew trial. MAIN, C. J., and CHADWICK, MOUNT, and MACKINTOSH, JJ., concur. (103 Wash. 499) by the trial court. After a careful examination of all of the facts relied upon to support the service, we are forced to the conclusion that this case, in all its features relating to the service of the summons, falls squarely within the rule laid down in the recent case of Macario v. Alaska Gastineau Mining Co., 96 Wash. 458, 165 Pac. 73, L. R. A. 1917E, viewed at length, a further discussion of them is now unnecessary. [1] The question, therefore, here to be determined is: Did the respondent mining company give the court jurisdiction by entering a general appearance? Its first appearance MATSON v. KENNECOTT MINES CO. et al. was undoubtedly special in name and in fact, (No. 14463.) (Supreme Court of Washington. Sept. 23, 1918.) for, after setting up, "appearing here specially for the purposes of this motion only, moves the court to vacate, set aside, and quash the alleged or pretended service of 1. APPEARANCE SPECIAL APPEAR- summons and complaint upon the Kennecott ANCE-MOTION TO QUASH. Mines Company for the following reasons," it, A motion to quash service, stating that de-after setting forth the grounds relied upon, fendant appeared specially for purposes of motion only, and asking no further relief, constitutes a special appearance under Rem. & Bal. Code, § 241. concludes: "Wherefore the defendant Kennecott Mines Company prays for an order of this honorable court vacating, quashing and an nulling the said service of summons and com- who has the right to be sued only in a court plaint upon and against the Kennecott Mines having jurisdiction of his person, and also Company." Clearly there was here no invok- has the right when sued to defend upon the ing of the jurisdiction of the court by asking merits, to choose between these two rights, for the rendition of a judgment or order in the and forfeit one in order to preserve the other. case such as the court can only render when But we think this court has already chosen it has jurisdiction of the persons of the par- the sounder and juster rule. ties to the action. Under our statute (Rem. & Bal. Code, § 241), and under all the authorities, this constitutes a special appearance only. The case of Woodbury v. Henningsen, 11 Wash. 12, 39 Pac. 243, opinion by the late Justice Dunbar, was an action in replevin before a justice of the peace. Notice and [2, 3] Having made, then, this special ap- complaint were served upon the defendant pearance only, and the motion to quash hav- by delivering copies to a child under the age ing been denied, was it the duty of the re- of 12 years. When the case was called for spondent in order to preserve this question trial, the defendant moved to quash the refor determination on appeal to appear no fur-turn of service of process for the reason that ther, submit to a judgment being entered the same had not been served according to against it by default, and take the chanc- law, specifying that the appearance was for es, if the appellate court should affirm the this purpose only, which motion was overruling on the motion to quash, of having to ruled, and the defendant excepted. There pay the plaintiff's full and uncontested de- after the defendant demurred to the command, or might it preserve the point for de- plaint, the demurrer was overruled, the case cision upon a future appeal, and defend on the merits with a view of reducing or defeating the plaintiff's claim? In 4 C. J. 1365, it is said: "In some jurisdictions it is held that, where a defendant appears specially to object to the jurisdiction, and his objection is overruled, he must elect either to stand on his objection or to go into the merits, and, if he goes into the merits of the cause, the objection is thereby waived." To support this rule cases are cited from 15 states and territories. The author then proceeds: "This rule, however, is subject to qualification, where the appearance is not voluntary, or where there is a stipulation allowing defendant to plead. But in many other jurisdictions, and by what seems the sounder reasoning, it is held that a defendant does not lose the benefit of his attack on the jurisdiction by thereafter answering and pleading to the merits, provided he preserves his objection, secures a ruling thereon, and has the ruling embodied in an exception. But even where this rule prevails, if a defendant goes further than he is necessarily required to do in order to contest the action on its merits and makes himself an actor in the proceeding by filing a counterclaim or cross-petition and by asking for affirmative relief, he thereby waives the question of personal jurisdiction." And to support the latter rule, the author cites cases from the Supreme Court of the United States, the federal courts, and 17 states. The reason for the rule is stated in Austin Mfg. Co. v. Hunter, 16 Okl. 86, 86 Pac. 293, where it is said: "The rule just referred to is based upon the assumption that a defendant is involuntarily in court, and that he is being compelled to litigate the case against his will, and so long as he simply defends against the cause or causes of action pleaded in plaintiffs' petition, he can urge the want of jurisdiction over his person in the appellate court, but not so where he files a crosspetition and asks for affirmative relief, for, by such act, he voluntarily submits himself to the jurisdiction of the court, and vests it with power to render any judgment necessary in the disposition of any and all of the issues involved in the entire controversy." proceeded to trial, resulting in a judgment against the defendant, and a writ of certiorari was sued out to the superior court, which was afterwards dismissed, and an appeal from that order was taken to the Supreme Court, which said: in the case was not sufficient to confer juris"It is conceded by respondent that the service diction of the person on the justice, but the contention is that the appellant waived that defect, submitted to, and conferred jurisdiction of the person on the justice by continuing in the case, excepting to the rulings of the justice thereafter, appearing generally and answering, and going to trial after his objection by way of special appearance was overruled by the justice. The authorities upon this question are not uniform, some courts holding that it is incumbent upon the party claiming a want of jurisdiction to stand upon his special motion, while others hold to the doctrine that when the special motion is made and overruled, no waiver will be imputed by proceeding to try the case upon its merits. We think the latter position is the better one, and therefore hold that the justice's court did not obtain jurisdiction by the general appearance entered by the defendant, after his motion had been overruled." The Woodbury Case was cited with approval in Walters v. Field, 29 Wash. 558, 70 Pac. 66, and it was there held, upon facts clearly distinguishable from the case at bar, that the defendant had by a voluntary general appearance waived his special appearance, and it was there said: "The defendant could have preserved his special appearance in his answer to the merits, but he did not see fit to do so." To the same effect are Morris v. Healy Lumber Co., 33 Wash. 451, 74 Pac. 662; Larsen v. Allan Line Steamship Co., 37 Wash. 555, 80 Pac. 181; Hodges v. Price, 38 Wash. 1, 80 Pac. 202; Gaffner v. Johnson, 39 Wash. 437, 81 Pac. 859; Columbia & P. S. R. Co. V. Moss, 53 Wash. 512, 102 Pac. 439; Steenstrup v. Toledo Foundry & Machine Co., 66 Wash. 101, 119 Pac. 16, Ann. Cas. 1913C, 427; Were this a case of first impression, we In re Martin's Estate, 82 Wash. 226, 144 Pac might argue against the first stated rule on 42. The appellant relies upon the cases of It is therefore apparent that the question involved has long been a settled one in this state, and as the rule so followed is sound in reason, and accords with justice, it should not now be disturbed. Does respondent come under this rule? There can be no question but that defendant's first appearance was special in fact as well as in name and an exception to the ruling of the court thereon was preserved to it by the statute (Rem. & Bal. Code, § 382). It preserved its special appearance in its subsequent appearances, and did not ask for affirmative relief. and Bain v. Thoms, 44 Wash. 382, 87 Pac. 504, arguing that these cases show a departure from the rule laid down in the Woodbury Case. We do not so read them. In the Teater Case the defendant filed a motion in the form of a special appearance, wherein he moved: (1) To quash the summons, and set aside the service thereof; (2) to set aside and quash the writ of restitution, for the reason that the same was prematurely issued, and that the court had no jurisdiction to issue the same; and (3) to dismiss the action, for the reason that no summons had been issued and served as required by law. The trial court sustained the motion to The true rule on affirmative relief is laid quash the summons and set aside the serv- down by the Supreme Court of the United ice thereof, but refused to quash the writ States in Merchants' Heat & Light Co. v. of restitution or dismiss the action, to which Clow & Sons, 204 U. S. 286, 27 Sup. Ct. 285, ruling the appellant excepted. A second sum- 51 L. Ed. 488, in which case a motion to mons was afterwards issued and the appel- quash the return of service was made and lant answered to the merits. The court said: overruled, and thereupon the defendants, "There would be much force in appellant's after excepting, appeared as ordered, and contention, if he had not asked the court below to dismiss the action. The appearance of appellant was in form special, for the purpose of objecting to the court's jurisdiction over his person, but in the body of his motion he invoked the jurisdiction of the court below on the merits, when he asked for a dismissal. A party desiring to successfully challenge jurisdiction over his person should not call into action the powers of the court over the subject-matter of the controversy." Thus it will be seen that the court held that the first appearance by motion to quash, though denominated special, was in fact general because it invoked the jurisdiction of the court below in asking for a dismissal of the action. Clearly this case in no wise overrules or modifies the Woodbury Case or the rule there adopted. The Bain Case presents the same question as the Teater Case. Service was attempted to be made by leaving copies of the summons and complaint at a place where the defendants were alleged to have their usual place of abode. Neither appeared, and some 90 days thereafter default and judgment were entered. Subsequently defendants by motion, which was termed special, moved that the judgment be set aside, that the action be dismissed, that the defendants have judgment against the plaintiff for their costs and disbursements, and for such other and further relief as to the court may seem just. The court said: "In the motion wherein appellants assumed to appear specially they did not ask to have the service of summons and complaint quashed, nor did they confine themselves to a prayer for the setting aside of the default and judgment, but they prayed that the judgment be set aside and that the action be dismissed, and that they have judgment for costs and disbursements, and such other relief as to the court might seem just; and they based their motion upon the records, files and certain affidavits, some of the latter setting forth facts going to the merits of the controversy. We think their appearance must be construed to be general." We think nothing in either of these cases pleaded the general issue and also a recoupment or set-off of damages under the same contract. The court said: "We assume that the defendant lost no rights by pleading to the merits, as required, after saving its rights. Harkness v. Hyde, 98 U. S. 476 [25 L. Ed. 237]; Southern Pacific Co. v. Denton, 146 U. S. 202 [13 Sup. Ct. 44, 36 L. Ed. 9421. But by setting up its counterclaim the defendant became a plaintiff in its turn, invoked the jurisdiction of the court in the same action and by invoking submitted to it. It is true that the counterclaim seems to have arisen wholly out of the same transaction that the plaintiff sued upon, and so to have been in recoupment rather than in set-off proper. But even at common law, since the doctrine has been developed, a demand in recoupment is recognized as a cross-demand as distinguished from a defense. Therefore, although there has been a difference of opinion as to whether a defendant by pleading it is concluded by the judgment from bringing a subsequent suit for the residue of his claim, a judg ment in his favor being impossible at common law, the authorities agree that he is not concluded by the judgment if he does not plead his cross demand, and that whether he shall do so or not is left wholly to his choice-citing cases. This single fact shows that the defendant, if he elects to sue upon his claim in the action against take the consequences. The right to do so is of him, assumes the position of an actor and must modern growth, and is merely a convenience that saves bringing another suit, not a necessity of the defense." Having preserved its special appearance, and not having invoked the jurisdiction of the court for affirmative relief, respondent's counsel were not bound upon incidental matters and motions, and whenever they arose to address the court, to preface their remarks by stating a special appearance. We have carefully examined the whole record, and especially the points called to our attention by the appellant, and find none of them sufficient to constitute a waiver of the special appearance. The question of the striking of the third amended complaint, and the dismissal of the the former opinion and requires no further changes the defendant's right under the statdiscussion. The judgment is affirmed. MITCHELL, MOUNT, and MACKINTOSH, ment of dismissal might be a bar to another JJ., concur. PARKER, J. I concur in the foregoing opinion, though it overrules the former opinion written by myself. Further reflection convinces me that the error in the former opinion lies in the failure to note the distinction between invoking the court's jurisdiction at the same time of moving to quash service of process, and invoking the court's jurisdiction, practically by compulsion, after the overruling of a motion to quash service of process. MAIN, C. J., concurs in the view expressed by PARKER, J. HOLCOMB, J. I dissent. To my mind the original opinion was erroneous in that it should have sustained the service of process upon authorized agents of the corporation in this state, the corporation not having been effectually dissolved, under the laws of Nevada, where it was organized, as to causes of action existing against it. CHADWICK, J. I agree with the conclusions of the majority, but I do not concur in all that it said of Teater v. King and Bain v. Thoms. It may be that if properly explained in the light of the record these cases can be severally distinguished, but they have stood out since their pronouncement as a holding on the part of this court that a prayer for the dismissal of an action is a general appearance, and they should be overruled, or we should at least declare that the language employed was inadvertent, and should not longer receive the full measure of its weight in words. ute and robs a special appearance of its character is beyond my power of comprehension. It was asserted in consultation that a judgaction, and for that reason was a judgment going to the merits, but I have always understood the law to be that a motion to dismiss for want of jurisdiction over the person of the defendant was analogous to a judgment of nonsuit, and is never held to be a bar to another proceeding involving the same subject-matter. 15 R. C. L. 982. I would have been pleased to have subscribed to an opinion admitting the general construction and acceptance of the two cases relied on and overruling them in terms. (103 Wash. 587) SPOKANE VALLEY GROWERS' UNION v. SPOKANE & I. E. R. CO. (No. 14840.) (Supreme Court of Washington. Sept. 25, 1918.) CARRIERS 39-FREIGHT-LIABILITY-DUTY TO RECEIVE. ed for carriage, and cannot refuse to carry A carrier is bound to take all freight offerfrost-bitten fruit, even though offered by the shipper under interstate commerce tariffs, under an option whereby the carrier must assume all liability due to frost, freezing, or overheating, not the direct result of the negligence of the shipper. Department 2. Appeal from Superior Court, Spokane County; R. M. Webster, Judge. Action by the Spokane Valley Growers' Union against the Spokane & Inland Empire Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed. Graves, Kizer & Graves, of Spokane, for appellant. Tustin & Chandler, of Spokane, for respondent. MOUNT, J. This action was brought to recover damages for an alleged wrongful refusal to receive for carriage a carload of apples tendered by the plaintiff. The facts favor of the plaintiff. were stipulated. Judgment was rendered in The defendant has appealed. To say that a special appearance by motion to quash a summons or a challenge to the jurisdiction of the court over the person of a defendant, followed by a prayer for a dismissal of the action, is a general appearance, is not consistent with reason or common sense. It does not rise to the dignity of the ridiculous. To put in words a prayer for that is a common carrier of freight, as designated The facts are as follows: The appellant which would follow as a matter of course un-in the tariffs filed wth the Interstate Comder the statute, or to voice audibly the form of the only order which the court has juris-tained a rate jointly with the Great Northern merce Commission. The appellant maindiction to make, is not a waiver of a special Railway Company for carrying boxed apples appearance. The result of such a holding in carload iots over its own line and that of amounts to this: If a defendant appears specially and moves to quash a summons, or asserts an evident lack of jurisdiction, and says nothing more, the court, if his motion be well taken, will enter an order of dismissal. If he asks in writing for the only relief the court has jurisdiction to give, he has made a general appearance. Why it should ever have been held that a prayer for a dismissal its connecting carrier, the Great Northern Railway Company. Tariff 25C and supplement No. 7 provided as follows: "In order that shipments of perishable freight may be protected from loss on account of frost, freezing, or overheating during the period October 15th to the following April 15th, inclusive, the shipper shall either assume responsibility for such protection or request the carrier to do so. "The shipper must specify on orders for empty cars, or in such manner as is provided by carrier prior to the loading, whether he desires to ship under Ventilation or Shippers' Protective Service (see Option No. 1, page 24 of tariff, and as supplemented), or under Carrier's Protective Service (see Option No. 2, page 25 of tariff, and as supplemented), and no change from one service to different service will be permitted after shipper has commenced loading of car. "When the shipper neglects or refuses to specify as above provided, whether he desires the freight to be transported under Option No. 1, page 24 of tariff (and as supplemented), or under Option No. 2, page 25 of tariff (and as supplemented), the shipments will be transported subject to all the terms of Option No. 2, page 25 of tariff (and as supplemented), in which event the agent at point of origin shall enter on bill of lading and waybill the following indorsement: 'Protective Service under terms Option No. 2 assumed by carrier.' "Shipper must make one of the following indorsements on bill of lading: 'Responsibility for damage from frost, freezing, overheating,, or protection against heat, assumed by shipper' or Liability for damage from frost, freezing, or overheating to be assumed by carrier.' ceiving the same from that company fur- Under the head of "Option No. 1" it was the same day, December 20, 1916, respondent, provided: "Under this option the shipper assumes all responsibility for loss due to frost, freezing, or overheating not the direct result of the negligence of the carrier. "The following notation must be shown on bill of lading: 'Responsibility for damage from frost, freezing, or overheating assumed by ship per.' by its president, Edward Pierce, requested from the appellant, through its agent at Opportunity, a bill of lading for said apples, which bill of lading was then and there made out in triplicate and tendered by the respondent to the appellant, a copy of which is attached to the statement of facts; and at that time wrote a letter to the agent as follows, Under the head of "Option No. 2" appears omitting the date and address: this provision: "Under this option, the carrier assumes all liability for loss due to frost, freezing, or heating, not the direct result of the negligence of the shipper. "The following notation must be shown on bill of lading: 'Liability for damage from frost, freezing, or overheating to be assumed by carrier.' Some time prior to December 19, 1916, the respondent agreed to sell to one Sawyer, at Billings, Mont., 630 boxes of apples. Respond ent was to ship the apples over the lines of appellant and one of its connecting carriers, either the Great Northern Railway Company or the Northern Pacific Railway Company, to Billings, Mont. Mr. Sawyer was to have the right to inspect the apples at Billings before his acceptance of the same. The price for the apples, according to the agreement between respondent and Sawyer, was $535.95, all freight and heater service charges to be paid by the purchaser upon the arrival of the apples at Billings. Under the agreement with Sawyer, respondent was to ship the apples under option No. 2 of the tariff above described, the carrier to assume all liability for loss due to frost, freezing, or heating not the direct result of the negligence of the shipper. Thereafter the respondent requested the appellant to furnish a car to be routed via either the Great Northern or Northern Pacific railway in which to ship the apples by heater service to Billings, Mont. Thereupon appellant applied to the Great Northern Railway Com We "Dear Sir: You are hereby advised that GN car 50132 furnished by you on our recent order for an NP or GN car in which to ship box apples heater service, to Billings, Mont., is now loaded and ready to move at your station. We desire this car shipped to our order, notify J. M. Sawyer, Billings, Mont.; the shipment to be subject to inspection and diversion with 'liability for damage from frost, freezing, or overheating to be assumed by carrier.' have prepared and herewith tender and leave in your possession standard bill of lading filled out as above which we request that you forthwith sign and return the original and one duplicate to us. We would further advise you that the said car of fruit, now loaded and on your switch at Opportunity is hereby delivered into your possession for transportation in accordance with said billing, and we request that you immediately move and transport said car of apples to its destination in accordance with said billing. The weather indications are now such that the said fruit may, and likely will, be endangered if the said car is not supplied with proper protection. Please take notice of all the above matters, and take such immediate action in the premises as may be necessary to perform your full duty with reference to said ship ment. "Spokane Valley Growers' Union." Thereafter, on December 22, 1916, the appellant addressed a letter to Mr. Pierce as follows: "My Dear Sir: This formal notice is to confirm the oral notices heretofore given to you that the apples which you have loaded in Great Northern Car No. 50132 on the tracks of the Spokane & Inland Empire Railroad Company at Opportunity cannot be accepted for shipment under option No. 2 bill of lading, which provides for carrier's responsibility, for the |